1. A criminal defendant in Kansas has a fundamental right to jury unanimity. Where several
acts are alleged and any one of them could constitute the crime charged, the jury must be
unanimous as to which act or incident constitutes the crime. To ensure jury unanimity in
such cases, either (i) the State must elect the particular criminal act upon which it will rely
for conviction or (ii) the trial court must instruct the jury that all of the jurors must agree
that the same underlying criminal act has been proved without a reasonable doubt.

2. In order to determine whether the State made an election of the particular criminal acts
relied upon, we analyze: (i) the original complaint, (ii) the opening statement and closing
arguments of the prosecutor, and (iii) the totality of the jury instructions.

3. If no election has been made and no unanimity instruction has been given, we apply a
two-step harmless error analysis. The first step is to decide whether there was a possibility of
jury confusion from the record or if the evidence showed either legally or factually
separate incidents. Incidents are legally separate when the defendant presents different
defenses to separate sets of facts or when the court's instructions are ambiguous but tend
to shift the legal theory from a single incident to two separate incidents. Incidents are
factually separate when independent criminal acts have occurred at different times or when
a later criminal act is motivated by a fresh impulse. When jury confusion is not shown
under the first step, the second step is to determine if the error was harmless beyond a
reasonable doubt with respect to all acts.

4. In a multiple acts case, controlling case law dictates that if factually separate incidents
have been alleged, failure to give a unanimity instruction is harmless if the defendant has
presented a unified defense to all of those acts.

5. Posttrial arguments challenging venue as to some of the acts alleged do not establish a
legally separate defense for purposes of requiring that a unanimity instruction be given.

6. As a general rule, when constitutional grounds for reversal are asserted for the first time
on appeal, they are not properly before an appellate court for review.

7. A rational relationship exists between both K.S.A. 21-3506(a)(1) and K.S.A.
21-3511(a)(1) and the legitimate interests of the State.

8. The better practice--if not the statutory requirement--is that a defendant's ability to pay
should be considered in determining the amount and method of payment of any
reimbursement of attorney fees pursuant to K.S.A. 2004 Supp. 22-4513(b).

GREENE, J.: Marshall M. Voyles, II, appeals his convictions on four counts
of
aggravated criminal sodomy and four counts of aggravated indecent solicitation of a child,
arguing that the court erred in failing to give a jury unanimity instruction and challenging the
constitutionality of K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a)(1). We affirm the convictions
and reject the constitutional challenge.

Factual and Procedural Background

On October 8, 2002, C.C. (then age 10) and E.F. (then age 9) gave a letter to Thelma,
their mother/step-mother respectively, stating: "I need to tell you something about dad. We
wanted to tell you before but we were scared. He is makeing [sic] us do you know
whate [sic]."
When Thelma asked the girls for clarification, they responded that their dad (defendant Voyles)
was "making them suck his thing."

Later that day, Thelma took the girls to visit her aunt and disclosed to her the girls' letter
and description of what Voyles did. The aunt then talked to the girls about the incidents, and the
girls explained to her that Voyles made them perform oral sex on him. The girls indicated the
incidents occurred in their mother's bed, in the front room of their house, in their dad's truck, at a
café, and at their grandmother's house. Additionally, the girls indicated they had
performed oral
sex on Voyles to get out of being punished, to get out of doing chores, and to get ice cream.

Subsequently, John Theis, a social worker and therapist at Horizons Mental Health
Center, conducted sexual abuse evaluations of the girls. E.F. told Theis that Voyles made her
perform oral sex on him two or three times. E.F. described the act of oral sex in detail and stated
the incidents occurred in Voyles' bedroom and in the living room of their house in Norwich. E.F.
explained that sometimes she or C.C. would play on the computer while the other one performed
oral sex on Voyles. E.F. said the incidents had occurred during the summer.

In C.C.'s separate interview with Theis, she explained that Voyles made her perform oral
sex on him in his truck, on his bed, and at her grandmother's house. C.C. described the act of oral
sex in detail and said Voyles made her perform oral sex on him three or four times. C.C. said the
first incident occurred on the couch in the living room of her house. C.C. also told Theis that she
played on the computer while E.F. performed oral sex on Voyles, and vice versa. Following one
or two of the incidents, Voyles gave her and E.F. each a dollar. Like E.F., C.C. said the incidents
had occurred during the summer.

The State charged Voyles with four counts of aggravated criminal sodomy, in violation of
K.S.A. 21-3506(a)(1), and four counts of aggravated indecent solicitation of a child, in violation
of K.S.A. 21-3511(a)(1). The complaint initially alleged the incidents occurred on or about
August 2002, but the trial court later granted the State's request to amend the complaint to allege
the incidents occurred between June 2002 and August 2002.

The jury found Voyles guilty of all counts. Voyles filed motions for mistrial and directed
verdict of acquittal; both motions were denied. On January 2, 2004, the trial court ordered Voyles
to serve a controlling prison sentence of 248 months.

Voyles timely appeals.

Was the District Court's Failure to Give a Unanimity Instruction Clearly
Erroneous?

Since Voyles did not request a unanimity instruction, we review his challenge for clear
error. See K.S.A. 2004 Supp. 22-3414(3); State v. Banks, 273 Kan. 738, 743-44, 46
P.3d 546
(2002). A jury instruction error is clearly erroneous only if the reviewing court is firmly convinced
there is a real possibility the jury would have rendered a different verdict if the trial error had not
occurred. 273 Kan. at 744.

A criminal defendant in Kansas has a fundamental right to jury unanimity. See K.S.A.
22-3421 and K.S.A. 22-3423(1)(d). Where several acts are alleged and any one of them could
constitute the crime charged, the jury must be unanimous as to which act or incident constitutes
the crime. To ensure jury unanimity in such cases, our Supreme Court has required that either (i)
the State elect the particular criminal act upon which it will rely for conviction or (ii) the trial
court instruct the jury that all of the jurors must agree that the same underlying criminal act has
been proved without a reasonable doubt. See State v. Carr, 265 Kan. 608, 618, 963
P.2d 421
(1998). The pattern jury instructions for Kansas contain a specific instruction for use in such
cases. See PIK Crim. 3d 68.09-B (multiple acts).

According to the initial charging document, the four counts each of aggravated criminal
sodomy and aggravated indecent solicitation of a child included two incidents with each child
victim, with each incident involving both a solicitation and a subsequent sodomy; one incident "in
Norwich," and one incident "in a pickup truck." The problem is that the evidence at trial included
reference to more than two such incidents with each child; in fact, scrutiny of the record reveals
that there was reference to at least "two or three" such incidents involving E.F. and at least "three
or four" such incidents involving C.C. The family member who first talked to the girls about these
events testified that the girls described the incidents as occurring to each of them in as many as
five separate locations, and it was never established which of those locations were in Norwich.

In order to determine whether the State made an election as to the particular criminal acts
relied upon, we analyze: (i) the original complaint, (ii) the opening statement and closing
arguments of the prosecutor, and (iii) the totality of the jury instructions. See Banks,
273 Kan. at
745-46. Based upon this analysis, we are unable to conclude that there was an election made by
the State. As noted above, the original complaint identifies only that there were two incidents
involving C.C. and two incidents involving E.F., occurring in Norwich and in a pickup without
any specificity of time, place, date, or precise events, except (as amended) that the acts occurred
between June and August 2002.

The opening statement and closing argument of the prosecutor generally referenced
several incidents but also focused on incidents occurring in the house and in the truck, without
any specificity as to either, and the girls identified at least two separate locations in their house
and additional acts in their grandmother's house. Moreover, as to the incidents in the girls' house,
the prosecutor never distinguished between the incidents in the bedroom and the incidents in the
living room.

The jury instructions stated that to establish that Voyles committed the crimes of
aggravated criminal sodomy as to both C.C. and E.F., the State must prove: (1) Voyles engaged
in sodomy with a child under age 14, and (2) this act occurred on or about June-August 2002, in
Kingman County, Kansas; and to establish that Voyles committed the crimes of aggravated
indecent solicitation of a child as to both C.C. and E.F., the State must prove: (1) Voyles solicited
to commit the act of aggravated criminal sodomy, (2) the child was then a child under age 14, and
(3) this act occurred on or about June-August 2002, in Kingman County, Kansas.

In oral argument before this court, the State was unable to indicate with any precision
whatsoever which acts were relied upon for each of the criminal counts or convictions. Clearly,
this was a multiple acts case but we are not satisfied that there was an election made by the State
and there was no specific jury instruction as to unanimity; thus, the requirements of our Supreme
Court to ensure jury unanimity were not met.

The more difficult question is whether the district court's failure to give a unanimity
instruction was clear error entitling Voyles to a new trial. The proper analysis to make this
determination has been problematic. See, e.g., Ediger, Elect or Instruct:
Preventing Evidence of
Multiple Acts from Threatening Juror Unanimity in Criminal Trials, 74 J.K.B.A. 28 (May
2005);
Beier, Lurching Toward the Light: Alternative Means and Multiple Acts Cases in
Kansas, 44
Washburn L.J. 275 (2005).

"In applying a two-step harmless error analysis, the first step is to decide whether there is
a
possibility of jury confusion from the record or if evidence showed either legally or factually
separate incidents. Incidents are legally separate when the defendant presents different defenses
to separate sets of facts or when the court's instructions are ambiguous but tend to shift the legal
theory from a single incident to two separate incidents. Incidents are factually separate when
independent criminal acts have occurred at different times or when a later criminal act is
motivated by 'a fresh impulse.' When jury confusion is not shown under the first step, the second
step is to determine if the error was harmless beyond a reasonable doubt with respect to all acts."

Faithfully applying the Hill two-step analysis, we must first determine whether
there is a
possibility of juror confusion or evidence showing either legally or factually separate
incidents.
See 271 Kan. at 939. Here, there is little difficulty discerning that each of the multiple sexual acts
described within the evidence occurred at different times within a 3-month period and each was
motivated by a fresh impulse, thus establishing that particular type of factual separability required
by the first prong of the Hill test. See State v. Arculeo, 29 Kan. App. 2d
962, 984, 36 P.3d 305
(2001), (Beier, J., concurring). Since we have not yet addressed jury confusion but have found
factually separate incidents (which may equate to jury confusion under
Hillndash;see 29 Kan. App. 2d
at 984), it is rather unclear whether we reach the second prong of the Hill test to
determine
whether the error was harmless beyond a reasonable doubt with respect to all acts. See 29 Kan.
App. 2d at 986. Clearly, however, to reverse on this basis alone would be consistent with the
structural error approach that was explicitly rejected in Hill. See 271 Kan. at 939.

Based upon careful scrutiny of appellate case law addressing this issue in similar
situations, harmless error must ultimately be determined from an examination of whether the
defendant has presented separate defenses to any of the acts alleged. See Banks, 273
at 746; State
v. Dean 272 Kan. 429, 443-44, 33 P.3d 225 (2001); Hill, 271 Kan. at 938-39;
State v. Shoptaw,
30 Kan. App. 2d 1059, 1061, 56 P.3d 303, rev. denied 275 Kan. 968 (2002);
Arculeo, 29 Kan.
App. 2d at 974-75. Although we are cognizant that this appears to be merely an
alternative
analysis for step one of the Hill test, it is undeniably the only true touchstone for
harmless error in
cases of this nature. We respectfully conclude that in multiple acts cases, controlling case law
requires that if, as here, it is determined that factually separate incidents have been alleged, failure
to give a unanimity instruction must be deemed harmless if the defendant has presented a unified
defense to all of those acts.

Here, Voyles attempts but fails to persuade us that his defense was not unified because of
questions as to proper venue for some of the acts alleged. This is not persuasive because there
was no objection as to venue for any of the acts, nor was the argument made at any time before
the jury's verdicts. The first and only challenge to venue was made posttrial in the defendant's
motion for acquittal, and it was denied based upon the applicability of K.S.A. 22-2603, K.S.A.
22-2604, or K.S.A. 22-2608. We conclude that posttrial arguments challenging venue
as to some
of the acts alleged do not establish a legally separate defense for purposes of requiring that a
unanimity instruction be given. The only defense presented was a general denial of all the acts
alleged, and the strategy at trial was to show minimal opportunity by the time line of the crimes
and to attack the credibility of the victims' stories. As summarized in the closing arguments:

"[Prosecutor:] And the issue is prettyndash;pretty simple. Did the defendant
have those little
girls engage in oral sex with him? Yes or no. That is what this case is about. That is what those
eight counts are as you go back and you read those instructions and go through those things with
the definition."

"[Defense counsel:] . . . Mr. Voyles doesn't have any burden placed upon him, but
he did
indeed take the stand. And what did he tell you? He told you about when he wasndash;what he
did.
What happened that summer. When he believes [C.C.] came out to live with them. Late June of
2002. We're going to go through the time table here in a little bit. And he did deny these
allegations. He looked at you and told you, 'No, I didn't do this to my kids.'"

As in Banks, Dean, Hill, Shoptaw and Arculeo, Voyles did not
present a separate defense
or offer materially distinct evidence of impeachment regarding one or more of the acts alleged.
Instead, he presented a general denial of participation in any wrongful conduct with
these girls
during the summer of 2002. There was no reason to assume jury confusion, and any failure to
give a unanimity instruction was harmless error.

In so holding, we reiterate the caveat from Hill:

"'This holding should not be interpreted to give prosecutors carte blanche to rely
on
harmless error review, and it is strongly encouraged that prosecutors elect a specific act or the
trial court issue a specific unanimity instruction. In many cases involving several acts, the
requirement that an appellate court conclude beyond a reasonable doubt as to all acts will not be
found harmless.'" 271 Kan. at 940.

Are K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a)(1) Unconstitutional Under the Due
Process
Clause of the Fourteenth Amendment to the United States Constitution and § 10 of the
Kansas
Constitution Bill of Rights?

Although Voyles' brief on appeal consistently references the wrong statute (see K.S.A.
2004 Supp. 21-3502[a][2]ndash;rape), we proceed on the premise that the focus of his
intended
challenge is either K.S.A. 21-3506(a)(1) or K.S.A. 21-3511(a)(1). Presumably, Voyles argues
that the Kansas statutes defining aggravated criminal sodomy is unconstitutional because they
prohibit consensual intimate contact with an unmarried adolescent person. We review
constitutional challenges to Kansas statutes de novo. See State v. Messer, 278 Kan.
161, 164, 91
P.3d 1191 (2004).

First, we note that Voyles did not challenge the constitutionality of K.S.A. 21-3506 and
K.S.A. 21-3511(a)(1) before the trial court. As a general rule, when constitutional grounds for
reversal are asserted for the first time on appeal, they are not properly before an appellate court
for review. State v. Williams, 275 Kan. 284, 288, 64 P.3d 353 (2003). There are
three exceptions
to this rule:

"(1) The newly asserted claim involves only a question of law arising on proved or
admitted facts
and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of
justice or to prevent the denial of fundamental rights; and (3) the district court is right for the
wrong reason. [Citations omitted.]" 275 Kan. at 288-89.

Here, because Voyles failed to acknowledge the absence of a constitutional challenge
below, he also failed to allege that any of the aforementioned exceptions apply to warrant
examination of his claim of error here. Nevertheless, because Voyles' challenge to the
constitutionality of K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a)(1) is purely a question of law
that may be determinative as to his convictions, we elect to address his challenge on its merits.

"The constitutionality of a statute is presumed, all doubts must be resolved in favor
of its
validity, and before the statute may be stricken down, it must clearly appear the statute violates
the Constitution. In determining constitutionality, it is the court's duty to uphold a statute under
attack rather than defeat it, and if there is any reasonable way to construe the statute as
constitutionally valid, that should be done. Statutes are not stricken down unless the infringement
of the superior law is clear beyond substantial doubt. [Citation omitted.]" State v.
Groschang, 272
Kan. 652, 668, 36 P.3d 231 (2001).

Presumably, Voyles argues that K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a)(1) violate
the Due Process Clause of the Fourteenth Amended to the United States Constitution because
they impose "a blanket proscription upon consensual, private intimate activities of all unmarried
persons under age fourteen without regard to the[ir] maturity." Preliminarily, we must question
Voyles' standing to challenge any statutory proscription of consensual activity, since there was no
allegation that the conduct in this case was consensual. See State v. Thompson, 221
Kan. 165,
171-73, 558 P.2d 1079 (1976) (analyzing constitutionality of former sodomy statute; holding
defendant lacked standing to challenge sodomy statute on ground that it unconstitutionally
prohibited private, consensual acts of adults when defendant was convicted of forcible sodomy).

Even if Voyles would have standing to challenge the constitutionality of the statute on the
grounds presented, the State correctly notes that his argument fails under the reasoning set forth
in State v. Taylor, 33 Kan. App. 2d 284, 101 P.3d 1283 (2004), rev. denied
279 Kan. ____
(2005). In Taylor, defendant challenged the constitutionality of K.S.A. 21-3504(a)(1)
(aggravated
indecent liberties with a child), which proscribes "[s]exual intercourse with a child who is 14 or
more years of age but less than 16 years of age." As in this case, defendant argued the statute
imposes a "'[b]lanket proscription upon consensual, private intimate activities of all unmarried
persons under age sixteen without regard to the [sic] maturity, [which] violates the
Due Process
Clause.'" 33 Kan. App. 2d at 286.

The Taylor court explained that to prevail on appeal, defendant was required
to
demonstrate no rational relationship existed between K.S.A. 21-3504(a)(1) and a legitimate
governmental objective. 33 Kan. App. 2d at 286 (citing State v. Risjord, 249 Kan.
497, 501-02,
819 P.2d 638 [1991]). The court then rejected defendant's argument, holding: "The State has a
compelling interest in the well-being of its children and in the exercise of its police powers may
enact legislation to protect children from adult sexual predators. [Citation omitted.] We conclude
a rational relationship exists between K.S.A. 21-3504(a)(1) and the legitimate interests of the
State." 33 Kan. App. 2d at 286.

The Taylor analysis is equally applicable here and leads to the conclusion that
rational
relationships exist between both K.S.A. 21-3506(a)(1) and K.S.A. 21-3511(a)(1) and the
legitimate interests of the State. For this reason, Voyles' constitutional challenge fails.

Did the District Court Err in Ordering Voyles to Reimburse the State for Attorney
Fees?

Finally, Voyles challenges the district court's order that he reimburse the State for his
attorney fees pursuant to K.S.A. 2004 Supp. 22-4513. We have unlimited review of this issue
framing the interpretation of a statute. See State v. Maass, 275 Kan. 328, 330, 64
P.3d 382
(2003).

At the close of Voyles' sentencing hearing, his attorney reminded the district court of
"[i]ndigent board reimbursement," and the court stated that it would recommend such
reimbursement as a condition of parole. In the court's journal entry of sentencing, the other
conditions of probation included as a comment: "The Defendant shall reimburse the
Aid to
Indigent Fund."

The reimbursement statute, K.S.A. 2004 Supp. 22-4513, provides:

"(a) If the defendant is convicted, all expenditures made by the state board of
indigents'
defense services to provide counsel and other defense services to such defendant or the amount
allowed by the board of indigents' defense reimbursement tables as provided in K.S.A. 22-4522,
and amendments thereto, whichever is less, shall be taxed against the defendant and shall be
enforced as judgments for payment of money in civil cases.

"(b) In determining the amount and method of payment of such sum, the
court shall take
account of the financial resources of the defendant and the nature of the burden that payment of
such sum will impose. A defendant who has been required to pay such sum and who is not
willfully in default in the payment thereof may at any time petition the court which sentenced the
defendant to waive payment of such sum or of any unpaid portion thereof. If it appears to the
satisfaction of the court that payment of the amount due will impose manifest hardship on the
defendant or the defendant's immediate family, the court may waive payment of all or part of the
amount due or modify the method of payment." (Emphasis added.)

We conclude that Voyles' challenge is premature. The district court has not yet determined
the amount and method of payment of such sum, and therefore had no obligation to consider
Voyles' financial resources. The record is simply devoid of any indication that the court has
spoken with finality on the matter of reimbursement, and we cannot consider the challenge until it
has ripened.

We trust that in determining the amount and manner of payment, the district court should
note that the better practice--if not the statutory requirement--is that a defendant's ability to pay
should be considered. See K.S.A. 2004 Supp. 22-4513(b).

Affirmed.

Buser, J., concurring: I concur that the State never elected the particular criminal acts
(among the many perpetrated against these two young girls) spanning a 3-month time period upon
which the State relied for its convictions. This failure coupled with the district court's omission in
failing to instruct the jury regarding the need for unanimity in its verdicts was obvious error. I
also agree with my colleagues that in this case, and in child sexual assault cases generally,
Hill and
its progeny essentially mandate a finding that such error is harmless beyond a reasonable doubt as
to all acts in those cases where there is solely a general denial by the defendant of any wrongful
conductndash;the so-called "credibility contest" between the alleged child victim and the
defendant.

I write separately to express a concern that given this case law precedent, the caveat cited
in Hill, 271 Kan. at 940, and restated in our opinion that "[t]his holding should not be
interpreted
to give prosecutors carte blanche to rely on harmless error review" may have become, over time,
an untenable admonition.